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Yesterday, Thursday, April 29, 2010, we voted on a number of bills. In a last move, Representative Blake Oshiro made four motions and I seconded them all to allow the Hawaii House of Representatives to make a vote on allowing civil union contractual rights to all in Hawaii (separate from the marriage law). The final vote was 31 “yes” votes and 20 “no” votes. Entering any partnership is just like a business partnership, everything is shared: tax liability, tax incentives, privacy, personal property, and real property. When there is a dissolution of the partnership, everything shared is divided. The law protects each partner to be fairly treated.

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If you are free, come down to my fundraiser for Lt. Governor on Thursday, April 29, 2010 from 5:30 P.M. to 7:30 P.M. at Chai’s Island Bistro in Aloha Tower Market Place, Honolulu, Hawaii 96813. Suggested Donation: $100 (Up to $100 donation from each individual will be matched by the state since we are participating in …the state expenditure limit program). Thank you. 🙂

Mr. Speaker, under current law, when faced by a threat on one’s life, one does not have a duty to retreat in one’s home or office. Senate Bill 532, Senate Draft 1, House Draft 1, Conference Draft 1 goes further where an owner of real property or an agent of the owner lawfully on the premises by consent of the owner, shall not be liable to any perpetrator engaged in any of the felonies involving violence as set forth in this bill for any injury or death to the perpetrator that occurs upon that property during the course of or after the commission of such felony, or when a reasonable person would believe that commission of a felony as set forth in this bill is imminent. However, if a perpetrator is injured, the perpetrator must be charged with the criminal offense and convicted of the criminal offense or of a lesser included felony or misdemeanor. Further, the limitation of civil liability applies only when the perpetrator’s conduct in furtherance of the commission of a felony specified in the bill proximately or legally causes the injury or death.

I have to admit that I struggled over this bill for the past two legislative sessions. I will go over the internal struggle I dealt with and why I came to agree with this conference draft before us. Last year, this bill stalled in conference since there was a stalemate between my counterpart in the Senate and myself. I drafted the House Draft 1 as narrow as I could with the intent to prevent any unintended consequences as best as I could. In the House Draft 1, the limitation of civil liability only applied to the owners. In contrast, the Senate defined an “owner” to mean owner, the occupant, tenant, or anyone authorized to be on the property by the owner or the occupant, including a guest or a family or household member, employee, or agent of the owner lawfully on the premises. Second, the House version limited civil liability to only apply when the perpetrator who is injured is convicted of a felony. It did not apply to when a perpetrator is killed. In contrast, the Senate version had limited liability for any injury or death to the perpetrator and had no requirement of a criminal conviction of the perpetrator. Third, the Senate version stated that the owner did not have a duty to warn the perpetrator of the felony and that he or she is armed and ready to cause bodily harm or death. The House version had no similar language. Finally, the last substantive difference is the Senate version had an additional subsection that did not limit the liability of an owner for injury or death caused to individuals other than the perpetrator of the felony.

In this conference draft, I agreed to the Senate to not limit civil liability exclusively to owners, or private owners, for a couple of reasons:

The owner is not always the person residing on the property or needing to defend it. For example, a renter or a significant other is not the legal owner of the property, but may rise to his or her own defense while residing there; and

Private persons are not the only ones holding title to property. Government housing projects, for example, are owned by the State and we would not want to prevent lessees of government property to be forbidden from protecting themselves in their own homes.

When I was younger, I trained in Aikido, the Japanese martial art that teaches one to the emphasis on self-defense. When attacked, one uses the force of one’s attacker to his or her advantage to subdue him, thus avoiding killing him. However, even with great discipline, under a very difficult situation, one’s self defense force may be too great, which may result in the unintended death of one’s attacker. Killing another should be avoided at all costs, but even with that train of thought in mind, the death of the perpetrator could still occur. After much thought and analysis, I agreed to the Senate to limit civil liability for an owner or agent of an owner who injured or killed a perpetrator upon the owner’s property during the course of or after the commission of a felony listed in this bill. On the other hand, the Senate agreed to the House version requiring a criminal conviction of an injured perpetrator in order to trigger the limitation of civil liability for the owner or agent of the owner.

I agreed to the Senate Draft 1 language, which the House did not have that says that the limitation of liability shall not be affected by the failure of the owner to warn the perpetrator of the felony and that the owner is armed and ready to cause bodily harm or death. In my rationale, when one is faced by an imminent threat of harm, one has to make a split decision to save his or her life or the lives of others. The time it takes one to warn the perpetrator of the felony and that he or she is armed and ready to cause bodily harm or death could result in the owner’s death and the death of those around him or her.

For the last difference between the House and Senate on this bill, the Senate Draft 1 had an additional subsection that did not limit the liability of an owner for injury or death caused to individuals other than the perpetrator of the felony. I agreed with this safeguard because an owner should still be liable for negligently injuring or killing an innocent third party or a third party of a lesser crime.

Finally, I agreed to this conference draft of Senate Bill 532 because there is a list of criteria an owner or agent of an owner in real property must meet in order to qualify in limiting his or her civil liability. These safeguards bring balance in protecting the perpetrator. The following are the criteria needed to limit civil liability for an owner or agent of an owner:

The perpetrator must be engaged in one of the following felonies, which are higher level felonies that mostly involves violence:

Murder in the first or second degree;

Attempted murder in the first or second degree;

Any class A felony as provided in the Hawaii Penal Code, including any attempt or conspiracy to commit a crime classified as a class A felony;

Any class B felony involving violence or physical harm as provided in the Hawaii Penal Code;

Any felony punishable by imprisonment for life;

Any other felony in which the person inflicts serious bodily injury on another person; and

Any felony in which the person personally used a firearm or a dangerous or deadly weapon.

The limitation on liability applies only when the perpetrator’s conduct in furtherance of the commission of a felony specified in this section proximately or legally causes the injury or death.

This section does not limit the liability of an owner that otherwise exists for:

Willful, wanton, or criminal conduct; or

Willful or malicious failure to guard or warn against a dangerous condition, use, or structure; or

Injury or death caused to individuals other than the perpetrator of the felony.

It is for all these reasons that I support this final version of Senate Bill 532. Thank you.

The purpose of this bill is to make further amendments to an ignition interlock statute that will come into effect next year. I agree with making needed corrections to the statute.

However, the insertion of a criminal sanction against the exercise of a privacy right is beyond “fine tuning” of the statutory provisions for the ignition interlock law. Criminalizing the refusal to submit to a test infringes upon important personal rights that in the past this legislature has been mindful of protecting. Under Hawaii case law, unless injury or death is involved, the person being requested to give a breath, blood, or urine sample for a DUI investigation has a right to refuse as set out in statute. This is clearly set out in the case of State of Hawaii v. Entrekin, 98 Haw. 221 (2002).

Under our implied consent statute, HRS §291E-11 states that a person is deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person’s breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person’s breath, blood, or urine. Why do we have an implied consent for accidents not involving injury or death? It is because actual consent is lacking. In light of the fact that actual consent is lacking and no injury or death has occurred, the policy has been set out in statute that a person may withdraw actual consent. The statute requires that the arrested person be “informed by a law enforcement officer that the person may refuse to submit to the testing.” However, there are clear sanctions for refusal. HRS§291E-65 subjects the person refusing to license suspension. This will be in addition to requirements of the application of the ignition interlock device. These civil penalties are not sanctions for crimes.

This measure makes criminals of people who exercise their right to refuse. First, the statute gives the people the right to refuse. Then, the statute strikes people down for the exercise of their right.

This measure will result in situations where the arrestee is convicted of refusal when the test result would have indicated that the arrestee was not guilty of intoxicated driving. There is no other criminal law in Hawaii like this. For these reasons I have grave reservations for this measure.

Mr. Speaker, I may be the last of a line of Judiciary chairs to oversee the implied consent law. As mentioned earlier, as chair of the Judiciary committee, my duty to this body is to inform it of any bill’s unintended consequences. My second duty to is to ensure laws are fairly applied. Thank you.

In regards to setting off fireworks in Hawaii, it is unfortunate there are individuals who break the law because their wrong-doings has given a lot of momentum for those in our community who want to ban fireworks completely. We already have stiff criminal penalties for those who disobey our fireworks laws. Now, we are going further as there is another bill that would take away real properties of those who violate our illegal fireworks laws comparable to the law that takes away real property of those who manufacture illegal drugs.

I support the section of the bill that would create an illegal fireworks task force to stop the importation of illegal fireworks and explosives. This was the original intent of this measure until it was hijacked by a House floor amendment that added another section to the bill that would allow counties to enact ordinances regulating fireworks that are more stringent than state law, which could result in different laws in the various counties making it more difficult to enforce. It is for this reason that I oppose this measure. We already had such a law in the past allowing home rule ordinances differing with each other on what fireworks were legal. Once the fireworks were imported into the state, there was a proliferation of smuggling of fireworks between the counties. This was the unintended consequences when that law was enacted. Rather, I believe our fireworks laws should be applied fairly throughout the state. Besides, criminal law is best enforced uniformly statewide as reflected in our criminal statutes and case law. As chair of the Judiciary committee, my duty to this body is to inform it of any bill’s unintended consequences. My second duty is to ensure laws are fairly applied.

I want to note that many of the complaints by Hawaii residents on fireworks are already illegal such as individuals setting off fireworks outside of the times permitted by law. Currently, fireworks can only be set off from 9:00 p.m. on New Year’s Eve to 1:00 a.m. on New Year’s Day; from 7:00 a.m. to 7:00 p.m. on Chinese New Year’s Day; and from 1:00 p.m. to 9:00 p.m. on the Fourth of July; or from 9:00 a.m. to 9:00 p.m. as allowed by permit pursuant to Hawaii Revised Statutes section 132D-10. Other than theses legal time slots, there is a ban on setting off fireworks. To resolve this problem of popping fireworks outside of the times permitted by law, we need to work together by abiding by the law, supervising our children and teenagers to do the same, and reporting to law enforcement agencies.

A second concern for Hawaii residents regarding fireworks is the amount of illegal fireworks being exploded, especially the really loud ones that shake our homes and cars. The illegal fireworks task force would be mandated to look into ways we can prevent illegal fireworks from entering our state. And again, we must follow the law, make sure our children do the same, and report to law enforcement agencies on any use of illegal fireworks.

Personally, I enjoy the beauty of fireworks and sharing the experience with my family and friends. It has been a tradition in Hawaii for many years for families to pop fireworks on New Year’s Eve and New Year’s Day for good luck for themselves and their loved ones, to bless their property, and to ward off evil spirits for the New Year. I believe our current law regarding fireworks is already strong but needs to be followed and better enforced by all of us with the assistance of our law enforcement agencies. I wish the original bill was left intact with the task force aimed at stopping illegal fireworks, but with the amendment allowing counties to enact more strict standards on fireworks than state law, I cannot support it.

When the first anti-shark finning bill was passed in Hawaii, ten years ago, it was considered landmark legislation that would lead the country, if not the world, to take the necessary steps towards eradicating the practice of removing the fins of a shark and dumping the body back into the ocean. Hawaii’s law requires the entire shark to be landed. This body’s efforts were successful, with Congress later enacting anti-shark finning laws of its own.

Although conservationists then hailed Hawaii’s shark finning ban as ground-breaking legislation that would save sharks from dying unnecessarily cruel deaths, the intervening ten years have apparently proven that what this body did was not enough to them.

Now, with this bill, conservationists want to go further by banning the possession of shark fins, thus eliminating any consumption of shark fins in the State of Hawaii. I fully support the intent of this bill; however, I believe that this bill is going too far to the extreme. As chair of the Judiciary committee, my duty to this body is to inform it of any bill’s unintended consequences. My second duty is to ensure laws are fairly applied.

When I passed this bill out of the Judiciary Committee, I told everyone that I would not accept any draft that does not address the concerns of all parties including those presented by the fisherman, business community, researchers, aquariums, and Chinese Community.

First, the current law prohibiting shark finning is not only the strongest in the world, but it is working. The fishermen I talked to felt that the current law of landing the entire shark is a good balance because the shark takes up so much space on a boat, thus, very little sharks are harvested. Plus, when a shark is harvested, the entire shark should be used just like the fish they catch. Conservationists argue that Hawaii will impact the entire world in regards to shark finning if we ban the possession of shark fins in Hawaii, but such a ban will have a tiny impact on the practice of shark finning in other parts of the world because our consumer market is a speck in this global economy. Rather, to truly make a global impact on the problem of shark finning in other parts of the world, Hawaii’s ban on shark finning should be replicated in other governments around the world. Our federal government could try to create international law that bans shark finning through international treaties.

Second, this bill does not protect our fisherman from unintended catches. Unlike the ivory poacher who deliberately aims a gun at a rhinoceros or elephant, the recreational or commercial fisherman casts his or her line into the ocean and hopes for the best. Fishing is just that, “fishing.” You don’t know what you are going to catch until you pull those lines or nets in. Sometimes one may pull in a shark that is wounded or has died as it struggled on the line or in the net. Instead of landing the wounded or dead shark and making use of the entire catch, fishermen will throw back an already dying or dead shark back into the ocean. Wounded sharks thrown back into the ocean will have a slow and painful death. In this respect, the breadth of this legislation has caused the attempt to save sharks from cruel and unnecessary deaths to backfire.

Third, according to testimony from the Department of Land and Natural Resources, sharks in Hawaii are currently considered sustainable by National Oceanic and Atmospheric Administration (NOAA). The conservationists emphasize the importance of the ecosystem, which is the community of organisms and its environment functioning as an ecological unit in nature. Too little predators in the ocean is bad because it could cause an increase in the population of the large fish that could eat up a lot more of the medium fish. On the contrary, too many predators in the ocean can cause a problem because they will cause a decrease in the population of the large fish, which could result in an increase in the population of the medium fish that would over-consume the small fish. Clearly, our current law is working and maintaining a healthy population of sharks in Hawaii. If sharks in Hawaii were in fact listed as an endangered species, then by all means, there should be a ban of possession of any part of the shark, plus let’s impose all the laws protecting endangered species including our “takings” law that includes mere harassment when an individual gets too close to the shark.

Fourth, repeatedly in our House Judiciary Committee hearing, researchers and aquarium administrators opposed the measure unless there was an exemption for them, however, they emphasized that they did not want a permitting process. This bill does exactly what they opposed, as it requires individuals to apply for a license or permit from the Department of Land and Natural Resources to be exempt of this law for research or educational purposes. Further, commercial aquariums will not meet the criteria to be exempted from the law if they do not conduct research or have any educational purpose.

Fifth, this bill will have a negative economic impact on the fishermen, especially to our business community. In its current form, the bill no longer distinguishes between fins naturally attached to or separated from the body of a shark. Therefore, it is not possible for any person other than a researcher to possess a whole shark or remove it from the ocean. This prohibition will effectively kill any shark-fishing operation that sells whole sharks for steaks or any other kind of consumption within the State.

Sixth, I have encountered so many advocates in my eight years in this institution, and time and time again, a good number of them think that negativity can force lawmakers to agree with them through their use of threats and personal attacks rather than an honest debate on policy. Believe me, I had my share of attacks by people, especially with my tenure as chair of the Judiciary committee, and I consider the conservationists’ attacks as uncalled for except for the Humane Society of the United States, which I enjoy working with.

Seventh, this bill unfairly targets our local Chinese community who has traditions of serving shark fin soup for special occasions such as weddings, important business dinners, New Year’s Day, as well as the medicinal practices. Outsiders and transplants into Hawaii continue to impose their beliefs upon the multicultural community in Hawaii. So what is next? Will they introduce a bill to ban kamaboko in Hawaii if it contains shark meat in it? For Americans of Japanese ancestry and many locals, the importance of eating ozoni soup on New Year’s Day as our first meal for good luck cannot be comprehended by those who do not understand our culture. The same goes for the importance of serving shark fin soup for special occasions and the use of shark fin for medicinal purposes. Many in the Chinese community have brought me in and shared their culture with me because of my openness to learn and practice their culture. In fact, I am wearing feng shui beads made of rubies to help bring balance within me. Likewise, as Judiciary chair, I seek to find balance in the laws.

Ten years ago, we passed a law banning shark finning in Hawaii to prevent cruelty to sharks. Now conservationists want us to stop shark finning around the world by having us go further and ban the possession of shark fins in Hawaii. Rather, the conservationists need to lobby the rest of the world to replicate our law banning shark finning, which they touted ten years ago as the landmark legislation that would lead the world.

JON RIKI KARAMATSU · In my work as a lawyer, consultant, and entrepreneur, I enjoy building and expanding companies. In my past, I served eight years as a Hawaii State Representative; owned an Internet retail business for ten years; served four and a half years as a Deputy Prosecuting Attorney and Legislative Liaison for the Department of the Prosecuting Attorney, City and County of Honolulu; and produced campaign, cultural, and music events since 2002. As a lawyer, I advocate for entities that need new or amended rules, regulations, and/or statutes by drafting legislation, resolutions, and/or proposals, followed by written and oral testimonies before government bodies. I also assist companies with government incentives, special revenue bonds, government applications, government permits, public and private grants, proactive legal defense strategies, product and services development, marketing, public affairs, and media affairs. Further, I review, draft, and negotiate business agreements and documents. Every so often, I help clients in settling disputes through negotiation, mediation, and/or arbitration. Further, I'm a partner in a start-up aviation fixed-base operator company in Hawaii, which we plan to break ground in 2019. I enjoy creative writing as well, completing a paranormal, romance, historical, and suspense novel based in Hawaii during the 2000s that has been copyrighted and is being shopped around for representation. I'm currently writing my second novel, a historical, romance, and suspense story based in Iraq during the U.S. occupation and war.